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2022 DIGILAW 1357 (RAJ)

Dhannaram S/o Heeraram v. State of Rajasthan

2022-04-29

SANDEEP MEHTA, VINOD KUMAR BHARWANI

body2022
JUDGMENT : SANDEEP MEHTA, J. 1. The appellants herein have been convicted and sentenced as below vide Judgment dated 22.09.2017 passed by the learned Additional Sessions Judge (Women Atrocities Cases) Bikaner in Sessions Case No. 46/2013: Dhannaram Offences Under Section Sentences Fine Fine Default sentences 498A IPC 2 Years' S.I. Rs. 2,000/- 2 Months' S.I. 302 IPC Life Imprisonment Rs. 10,000/- 6 Months' S.I. 201 IPC 3 Years' S.I. Rs. 2,000/- 2 Months' S.I. All the substantive sentences were ordered to run concurrently. Kanhaiya Lal and Mohta Devi 201 IPC 3 Years' S.I. Rs. 2,000/- 2 Months' S.I. 2. They have preferred the instant appeal under Section 374(2) Cr.P.C. for assailing the impugned Judgment of conviction and the sentences awarded to them. 3. Facts relevant and essential for disposal of the appeal are noted herein-below: Jaiti Devi (PW-2) submitted a written report (Ex.P/1) at Police Station Gajner on 21.01.2013 at 02.05 P.M. alleging inter alia that her daughter Smt. Magi had been married to the appellant Dhannaram about four years ago. After one year of the marriage, the husband Dhannaram, father-in-law Heeraram, mother-in-law Mohta Devi, Jeth Kanhaiya Lal and Jethani Lichhu Devi started harassing and humiliating Smt. Magi for demand of dowry. In the meantime, her husband Kisnaram expired. Being fed-up by the regular maltreatment of her daughter, Jaiti Devi called Magi Devi back to the maternal home. Six months’ prior to the incident, Magi’s husband and brother-in-law came to the house of the complainant at 06.00 P.M. and apologized saying that Magi would not be maltreated again in the matrimonial home. The community people also gave this assurance to the complainant on which, she sent Magi back to the matrimonial home at Surajada. Even thereafter, the maltreatment of Magi on account of demand of dowry continued. The complainant had become vulnerable because of her husband’s death and waited in hope that the situation qua Magi would improve. However, on 21.01.2013 at about 08.00 A.M. she received an information that Magi had passed away in the night of 19.01.2013 and the matrimonial relatives had buried the dead body on 20.01.2013 without informing any of the maternal relatives. Her daughter had a three years old son. She and her family members suspected that Magi Devi had been murdered and her body had been buried in order to destroy the evidence. Her daughter had a three years old son. She and her family members suspected that Magi Devi had been murdered and her body had been buried in order to destroy the evidence. On the basis of this written report (Ex.P/1), FIR No. 6/2013 (Ex.P/2) came to be registered at the Police Station Gajner, District Bikaner for the offences punishable under Sections 498A, 304B and 201 IPC. After following the due process of law, the dead body of Smt. Magi was exhumed from the burial place and was subjected to autopsy at the hands of a Medical Board constituted at the Community Health Center, Gajner, District Bikaner. The Medical Board conducted autopsy and prepared the postmortem (Ex.P/5) taking note of bruises on neck, chest, abdominal and scapular regions of the deceased. The cause of death was opined to be asphyxia due to antemortem manual strangulation. The usual investigation process was undertaken. The accused appellant Dhanna Ram was arrested on 22.01.2013 vide arrest memo (Ex.P/20). After concluding investigation, the investigating agency proceeded to file a charge-sheet against the appellants herein for the offences punishable under Sections 498A, 304B IPC in the alternative Section 302 IPC and Section 201 IPC. The case was committed to the Court of the Additional Sessions Judge (Women Atrocities Cases), Bikaner where, charges were framed against the appellants in the following terms: S. No. Name of the Accused Date Offences 1. Dhannaram 24.06.2013 U/s 498-A of IPC U/s 304-B of IPC and in alternative u/s 302 of IPC U/s 201 of IPC 2. Kanhaiyalal 24.06.2013 U/s 201 of IPC 3. Mohta Devi They pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 23 documents to prove its case. The accused appellants were confronted with the circumstances appearing against them in the prosecution evidence by recording their statements under Section 313 Cr.P.C. They denied the prosecution allegations and claimed to be innocent. The accused Dhannaram took a specific plea that he was not present in his house when the incident took place and was working at Ganganagar. Three witnesses were examined in defence. 4. The accused Dhannaram took a specific plea that he was not present in his house when the incident took place and was working at Ganganagar. Three witnesses were examined in defence. 4. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and, appreciating the evidence available on record, the learned trial court, proceeded to convict and sentence the appellants as above whereupon, they have approached this Court through the instant appeal for assailing the impugned Judgment dated 22.09.2017. 5. Shri Vineet Jain, learned Senior Advocate assisted by Shri Rajeev Bishnoi, Advocate representing the appellants, vehemently and fervently contended that the prosecution case regarding the accused having harassed and humiliated Smt. Magi on account of demand of dowry, is totally cooked up and unbelievable. The star prosecution witness Jaiti Devi (PW-2), first informant, did not utter a single word in her testimony as to what was the nature of demand made by the accused by way of dowry from the deceased Magi. Referring extensively to her testimony, Shri Jain urged that the witness admitted in her cross-examination that for a period of 2 years after the marriage, Smt. Magi was living happily in the matrimonial home. Thus, as per Shri Jain, the allegations levelled in the examination-in-chief regarding the demand of dowry, have virtually been disowned by the witness in her cross-examination. He urged that the other material witnesses who are the close family members of the deceased and Jaiti Devi namely PW-4 Bhanwar Lal (cousin brother of Magi), PW-5 Utmaram (brother-in-law of Jaiti Devi and uncle of Magi Devi) and PW-6 Ladu Ram did not support the prosecution case and rather stated that Magi Devi was never harassed or humiliated in the matrimonial home on account of demand of dowry. Referring to the statement of the Investigating Officer Anukriti Ujjainiya (PW-12), Shri Jain urged that it was admitted by the officer that after the death of Magi Devi, Kanhaiya Lal (brother-in-law of Magi), Laduram, Natthuram and 3-4 other persons went to the maternal home of Magi and gave information of her death whereafter, parental relatives of the deceased including her cousin brother, proceeded to the village Surajada and the last rites were performed and dead body of Magi was buried in their presence. The mother and uncle did not come to participate in the last rites which were performed with the active participation of the maternal relatives who came down to the village Surajada after information of Magi’s death had been duly conveyed. He further pointed out that the I.O. Anukriti Ujjainiya (PW-12) admitted in her cross-examination that none of the witnesses examined during trial examined during investigation, stated that the spouses were present together in the house on the night of incident. He also pointed out that none of the prosecution witnesses stated that any of the accused appellants was present in the house when Smt. Magi expired. Thus, as per Shri Jain, complete lack of evidence to substantiate the allegation of demand of dowry which is portrayed as the sole motive for the offence and since, no witness of prosecution gave evidence to establish presence of the accused in the house when Smt. Magi was murdered, conviction of the appellants in this case is totally unjustified. He further urged that the trial court has convicted the appellants Kanhaiya Lal and Mohta Devi for the offence punishable under Section 201 IPC without any justification. The I.O. Anukriti Ujjainiya (PW-12) admitted that accused Kanhaiya Lal went to the village of the complainant and gave information regarding the unfortunate fate which had befallen the victim. Some of the maternal family members came down to the village of the accused and participated in the last rites which were performed as per the tradition of burial prevalent in the community to which the parties belong. He thus urged that there is nothing on record of the case to establish that the accused appellant Kanhaiya Lal and Smt. Mohta Devi indulged in destruction of evidence so as to justify their conviction for the offence punishable under Section 201 IPC. He further submitted that for taking aid of Section 106 of the Indian Evidence Act to convict the accused Dhanna Ram by shifting burden of proof on to him, the prosecution would have to lead positive evidence either direct or circumstantial to affirmatively establish presence of the accused in the house at the time of the incident. However, none of the witness examined during investigation or trial, stated that the accused Dhannaram was present in the house when Smt. Magi was murdered. However, none of the witness examined during investigation or trial, stated that the accused Dhannaram was present in the house when Smt. Magi was murdered. He thus urged that conviction of the appellants as recorded by the trial court is totally unjustified. In support of his contentions, Shri Jain placed reliance on the Supreme Court Judgment in the case of Sohel Mehaboob Shaikh vs. State of Maharashtra, AIR 2009 SC 2702 and implored the Court to accept the appeal, set aside the impugned Judgment, acquit the accused appellants of the charges and as a consequence, direct release of the accused Dhanaram from prison. 6. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellants’ counsel. He urged that the first informant Jaiti Devi (PW-2) has given convincing evidence on the aspect that Smt. Magi, who was married to Dhannaram about four years prior to the incident, was maltreated and harassed in the matrimonial home on account of demand of dowry. She was severely tormented and thus was compelled to leave the matrimonial home and went back to live at the parental home for a significant period. The accused persons came down to the village of the complainant and apologized for their misbehaviour and assured that Smt. Magi would be treated properly whereupon, and with the intervention of the community Panchayat, the victim was sent back to the matrimonial home. Shortly thereafter, she was murdered by strangulation in the middle of the night. The accused tried to cover up the crime by burying the dead body without informing the complainant or any other family members. Learned Public Prosecutor urged that the onus of explaining the circumstances under which Smt. Magi was strangled to death in the matrimonial home during the night, would shift on to the accused Dhannaram by virtue of Section 106 of the Indian Evidence Act but he offered no explanation in this regard. On these grounds, learned Public Prosecutor submitted that conviction of the appellants as recorded by the trial court vide impugned Judgment, is absolutely justified and that the impugned Judgment does not warrant any interference whatsoever in this appeal. 7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and have minutely re-appreciated the evidence available on record. 8. 7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment and have minutely re-appreciated the evidence available on record. 8. On a careful perusal of the entire record and analysis of the evidence led by prosecution, it is manifest that the only witness, who gave a semblance of evidence against the accused, was the first informant Smt. Jaiti Devi (PW-2), mother of the deceased. She stated in her evidence that Magi, who was married to Dhanna Ram about four years before the incident, was maltreated in the matrimonial home for demand of money and dowry whereupon, she was brought back to the maternal home and stayed there for six months. Thereafter, her brother-in-law Kanna Ram (Kanhaiya Lal) and the husband Dhannaram came and gave an assurance that they would not maltreat Smt. Magi in future. A community Panchayat was convened and thereafter, Smt. Magi was sent back to the matrimonial home. For 12 months, she stayed there without any complaint. The informant’s son Aasuram brought Magi back to the parental home about 20 days before the incident. She stayed with the informant for about 7 days and then, Dhannaram came to fetch her. He assured that he would never harass Magi on which, the informant sent her back to the matrimonial home, however, she was killed soon thereafter. No information of her unnatural death was given and the informant was told by some person from the community that Magi had been killed and the body buried. In cross-examination, the informant admitted that the wedding ceremony was performed as per the prevalent customs of their community. Dowry, etc. was also given according to customs. No demand was made at the time of engagement or during the marriage. For a period of 2 years from the marriage, Magi used to stay in the matrimonial home comfortably. She would come to the maternal home freely and during this period, no dowry demand was made from Magi. She could not specify as to when Magi was beaten or maltreated or as to in which period, dowry was demanded from her. She alleged that her son-in-law used to work at home. He used to clean the shop, drive a cart and worked in the agricultural field. Her daughter also worked in the fields with her husband. She could not specify as to when Magi was beaten or maltreated or as to in which period, dowry was demanded from her. She alleged that her son-in-law used to work at home. He used to clean the shop, drive a cart and worked in the agricultural field. Her daughter also worked in the fields with her husband. She feigned ignorance to the question as to whether the husband and wife used to stay together. She also could not say as to how many days before her death, Magi had returned to the matrimonial home. Whenever she went to the matrimonial home of Magi, she would observe that her daughter was living comfortably. She was confronted with certain omissions, contradictions vis-a-vis her sworn testimony and the written report (Ex.P/1) but she could not explain the same. Upon a threadbare perusal of the statement of Jaiti Devi (PW-2), it becomes clear that she admitted that whenever she went to the matrimonial home of Magi, she saw her living comfortably. No dowry was demanded at the time of engagement and marriage. For a period of two years from the marriage, no demand whatsoever was made from Smt. Magi. Smt. Jaiti Devi did not utter a single word in her testimony as to what precisely was demanded from Smt. Magi by any of the accused persons by way of dowry and as to when the alleged demands were made. Smt. Jaiti Devi also admitted in her cross-examination that her son Aasuram went to fetch Magi from the matrimonial home about 20 days before the incident. However, Aasuram, real brother of the decease whose evidence would have been vital for unfurling the truth, was surprisingly not examined as a witness on behalf of prosecution. The witnesses Bhanwarlal (PW-4) and Utmaram (PW-5), who are closely related to the complainant, did not support the prosecution case and admitted that the victim was never harassed or humiliated in the matrimonial home on account of demand of dowry. 9. Thus, we are of the firm opinion that the conclusions drawn by the trial court at Para Nos. 24 and 27 of the impugned Judgment that Smt. Magi was harassed and humiliated in the matrimonial home on account of dowry, are totally baseless as these findings were recorded merely on the basis of the examination-in-chief of Jaiti Devi without consideration of the cross-examination conducted from the witness. 24 and 27 of the impugned Judgment that Smt. Magi was harassed and humiliated in the matrimonial home on account of dowry, are totally baseless as these findings were recorded merely on the basis of the examination-in-chief of Jaiti Devi without consideration of the cross-examination conducted from the witness. The manner in which trial court appreciated the evidence by relying upon the examination-in-chief and ignoring the cross-examination is indicative of a lopsided approach and depicts that the Presiding Officer had already formed a preconcieved notion that the accused were guilty of the charges. The procedure so adopted smacks of bias and unfairness. The finding recorded by the trial court on the aspect of the charge under Section 498A IPC holding that the deceased Magi was harassed and humiliated in the matrimonial home by her husband, mother-in-law, father-in-law and brother-in-law, is totally perverse and self-contradictory because the prosecution did not even propose a charge for this offence against the accused appellants Kanhaiya Lal and Mohta Devi. Thus, the conclusion drawn by the trial court in the impugned Judgment that the accused appellant Dhannaram harassed and humiliated his wife Smt. Magi on account of demand of dowry is not substantiated by the evidence available on record. 10. From the evidence of Medical Jurist (PW-3) Dr. Lokesh Gupta, Member of the Medical Board which conducted autopsy of the victim Smt. Magi, cause of death of Smt. Magi was opined to be asphyxia due to antemortem manual strangulation. The doctor proved this fact in his evidence as well as by the postmortem report (Ex.P/5). 11. The accused appellant Dhannaram has been convicted for the offence punishable under Section 302 IPC by invoking the reverse burden of proof as per Section 106 of the Indian Evidence Act. Law is well settled that before the accused is called upon to explain the circumstances in his exclusive knowledge by virtue of this doctrine of shifting the burden of proof, the prosecution would have to prove, either by direct or circumstantial evidence, that the accused was present in the same room/house where the deceased was murdered by violent means. The prosecution would have to lead, if not unimpeachable at least plausible evidence to establish the presence of the accused at the crime scene when the offence was committed. The prosecution would have to lead, if not unimpeachable at least plausible evidence to establish the presence of the accused at the crime scene when the offence was committed. On a perusal of the statements of the prosecution witnesses examined at the trial, it becomes clear that Jaiti Devi (PW-2) gave vague suggestions that her son-in-law used to work at home. He used to clean the shop, drive a cart and do work in the fields. However, none of the witnesses examined by prosecution has alleged that the accused was employed in some shop or that he owned an agricultural field or a cart. Thus, this vague version of Smt. Jaiti Devi is not sufficient to conclude that the accused Dhannaram was actually present with Smt. Magi when she was strangulated and murdered. The I.O. (PW-12) Anukriti Ujjainiya admitted in her cross-examination that none of the witnesses examined during investigation, stated that the husband and wife were present together in the house on the fateful night. The accused Dhannaram, upon being questioned under Section 313 Cr.P.C. took a specific plea that he was at Ganganagar in connection with his labour jobs. The last rites had been performed by the time he reached his village. Accused Kanhaiya Lal and Mohta Devi also gave similar statements. The witness Aadu ram, who was examined in defence as DW-1, stated that Kisna Ram (husband of Jaiti Devi) was his nephew. Magi was married to Dhannaram. There is no custom of giving dowry in their community. Magi used to freely visit her parental home after the marriage and was satisfied in the matrimonial home. Magi expired and he was informed of her death by Gopiram, Bhinyaram, Laduram and Kanhaiya Lal. On getting this information, the maternal family members hired a vehicle and came down to the village Surajada. A chunni was put on the dead body which was buried in presence of all the family members. At that time, husband Dhannaram was at Ganganagar in connection with his labour jobs. He reached the village after the body had been buried. The witness could not be shaken from this version despite extensive cross-examination conducted by the learned Public Prosecutor. 12. Sarita (DW-2) also gave evidence to the effect that Dhannaram was at Ganganagar at the time of incident in connection with his labour jobs. The maternal family members were informed about the death of Magi. The witness could not be shaken from this version despite extensive cross-examination conducted by the learned Public Prosecutor. 12. Sarita (DW-2) also gave evidence to the effect that Dhannaram was at Ganganagar at the time of incident in connection with his labour jobs. The maternal family members were informed about the death of Magi. They came to the village and participated in the last rites. Similar evidence was given by DW-3 Gopiram. 13. After discussing the entire evidence available on record, we are of the view that the prosecution has failed to lead convincing evidence to even prima facie show that the accused appellant Dhannaram had any motive to kill his wife Smt. Magi. No evidence was led to prove presence of Dhannaram in the house with Smt. Magi where she was murdered. The other family members i.e. Kanhaiyalal and Mohta Devi were not even charged for the offences under Sections 498A, 304 and 302 IPC. On the other hand, in the statement under Section 313 Cr.P.C. and by the evidence of the defence witnesses, a definite version has been put-forth regarding the accused Dhannaram being at Ganganagar on the day of the incident and that he came back to the village after the last rites of Smt. Magi had been performed. Therefore, we are of the firm opinion that the prosecution has not led plausible, direct or circumstantial, evidence to establish presence of the accused Dhannaram in his house on the day of the incident. 14. In the case of Sohel Mehaboob Shaikh (supra) relied upon by Shri Jain, learned counsel representing the appellant, Hon’ble the Supreme Court considered this aspect and observed as below: “7. The three circumstances brought on record by the prosecution and highlighted by the Trial Court and High Court are as follows: (i) Deceased Sofiya met with an unnatural death. (ii) Deceased Sofiya had died in the room which was solely and exclusively occupied by her and her husband i.e. accused No. 1. (iii) The appellant has not offered any explanation in respect of the incident in which deceased Sofiya had sustained burns. 8. We have gone through the evidence on record and we find that the High Court arrived at some conclusions which, in our opinion, are based on surmises and conjectures, without there being any evidence to support the conclusions. (iii) The appellant has not offered any explanation in respect of the incident in which deceased Sofiya had sustained burns. 8. We have gone through the evidence on record and we find that the High Court arrived at some conclusions which, in our opinion, are based on surmises and conjectures, without there being any evidence to support the conclusions. That being so, we find that the charge against the appellant has not been established. 9. The first and third circumstances cannot be considered to be relevant either separately or collectively. So far as the second circumstance is concerned, there is no evidence to show circumstantially that accused was present in the room at the time of occurrence. The time of occurrence, even by approximation has not been established by the prosecution.” 15. A similar factual scenario was considered by Hon’ble the Supreme Court in the case of Satye Singh and Others vs. State of Uttarakhand (Criminal Appeal No. 2374 of 2014) decided on 15.02.2022 wherein, it was held as below: “7. This takes the Court to the next issue as to how and who caused the death of Shashi. The prosecution in order to prove the charges levelled against the Accused had examined 11 witnesses. However, none of witnesses had any knowledge about the alleged incident. PW-1 viz. Jontara Devi, aunt of the deceased had deposed, inter-alia, that on 27th at about 11.00 o’clock Satye Singh had made a phone call to her to enquire whether the Shashi had come to her house, and that on the next day she had come to know that Shashi was burnt to death. In the cross-examination, she had admitted that the Accused Satye Singh or all his family members had never made any demand of dowry in her presence, nor any assault was made by them in her presence. 8. The father of the deceased-Sharad Singh (PW-2) of course had stated in his evidence that the Accused i.e. husband of the deceased and his family members used to harass his daughter-Shashi for dowry and, therefore, many a times Shashi used to come his house running. He had also stated that one month prior to the incident in question, Shashi had come to his house and told him that she was being assaulted and abused by the Accused for the dowry. He had also stated that one month prior to the incident in question, Shashi had come to his house and told him that she was being assaulted and abused by the Accused for the dowry. As regards the incident in question, he had stated that Satye Singh had called him in the morning at about 10-11 o’clock to inform him that Shashi had committed suicide by setting herself ablaze. He therefore along with villagers had gone to the Chhan of the Accused and saw that dead body of Shashi was lying there in burnt condition. He had given the written complaint to the police with regard to the incident in question. In the cross examination he had admitted that he had never seen any injuries on her body nor he had lodged any complaint about the alleged harassment by the Accused. He had further stated that the Chhan i.e. cowshed of the Accused was situated at the distance of half an hour of the house of the Accused at village Ger and that there was a forest of Baanj, Buransh in between the village and the Chhan. He had also stated that the father of the Satye Singh was deaf and dumb. He also admitted that on the previous evening when Jontara Devi informed him about the phone call from Satye Singh enquiring about Shashi, he did not go to the village of the Accused, thinking that they keep on quarrelling like that. He also admitted that Satye Singh and all his family members were present when he reached at the spot i.e. the Chhan. He had admitted that he did not know as to how his daughter was burnt, however, had denied the suggestion that Shashi had caught fire from the Chulla (hearth). He also denied that there was no harassment by the Accused to his daughter. 9. PW-3 Bhagdeyi Devi, mother of the deceased, PW-5 (Bharat Singh) uncle of the deceased and other villagers PW-4 (Bhagat Singh), PW-6 (Balbir Singh) and PW-7 (Gabbar Singh) were examined by the prosecution, however, none had any knowledge as to how, when and where the deceased was killed and burnt. 10. It is also very pertinent to note that the entire investigation carried out by the Investigating Officers Gunanand Bahuguna (PW-10) and Virendra Raj (PW-11) was in a very cursory and shoddy manner. 10. It is also very pertinent to note that the entire investigation carried out by the Investigating Officers Gunanand Bahuguna (PW-10) and Virendra Raj (PW-11) was in a very cursory and shoddy manner. On receiving the information from Shri Rai Singh, Pradhan of the village, the Naib Tehsildar (Virendra Raj) had reached to the spot i.e. the Chhan and registered the complaint against the Accused Satye Singh, Indra Devi and Sangeeta Devi, at the instance of the complainant Sharad Singh, however, had not bothered to investigate as to how the incident had taken place. There was no investigation carried out by either of the Investigating Officers as to at which place the deceased was killed and burnt, and how and by whom her burnt body brought in the Chhan. Though, according to the Investigating Officer, it was suspected that the crime was committed by Atar Singh, father of Satye Singh, he was never implicated in the case. There was no recovery and discovery of any incriminating articles made from the Accused during the course of investigation and no attempt was made to collect any evidence much less cogent evidence to connect the Accused with the alleged crime. 11. On the totality of circumstances and evidence on record, at the most it could be said from the evidence of the parents of the deceased that there was harassment by the Accused to the deceased, though no charge Under Section 498A of Indian Penal Code was framed by the trial court against the Accused. It could be further inferred from the evidence on record that the deceased Shashi had left the house on the previous evening of the alleged incident and that she was not found during the whole night, nonetheless such circumstance itself could not be said to be sufficient proof to come to a conclusion that Accused had murdered and burnt Shashi as alleged. It is settled position of law that circumstances howsoever strong cannot take place of proof and that the guilt of the Accused have to be proved by the prosecution beyond reasonable doubt. At this juncture, let us regurgitate, the golden principles laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra, MANU/SC/0111/1984 : 1984 (4) SCC 116 . This Court while drawing the distinction between “must be” and “may be” observed as under in Para-153: 153. At this juncture, let us regurgitate, the golden principles laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra, MANU/SC/0111/1984 : 1984 (4) SCC 116 . This Court while drawing the distinction between “must be” and “may be” observed as under in Para-153: 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an Accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra, MANU/SC/0167/1973 : (1973) 2 SCC 793 : 1973 SCC (Cri.) 1033 : 1973 Cri. L.J. 1783, where the observations were made. Certainly, it is a primary principle that the Accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the Accused, that is to say, they should not be explainable on any other hypothesis except that the Accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the Innocence of the Accused and must show that In all human probability the act must have been done by the Accused. 12. It was further observed in Para-158 to 160: 158. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra vs. State of Bihar, MANU/SC/0030/1955 : AIR 1955 SC 801 : (1955) 2 SCR 570 : 1955 Cri. L.J. 1647, to supplement his argument that if the defence case is false It would constitute an additional link so as to fortify the prosecution case. L.J. 1647, to supplement his argument that if the defence case is false It would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the Interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: But In a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the Appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, such absence of explanation or false explanation would itself be an additional link which completes the chain. 159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved. (2) the said circumstance points to the guilt of the Accused with reasonable definiteness. (3) the circumstance is in proximity to the time and situation. 160. If these conditions are fulfilled only then a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. On the facts and circumstances of the present case, this does not appear to be such a case. This aspect of the matter was examined in Shankarlal Case [MANU/SC/0211/1980 : (1981) 2 SCC 35 : 1981 SCC (Cri.) 315 : (1981) 2 SCR 384 : 1981 Cri. L.J. 325] where this Court observed thus: Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the Accused. 13. The said principles have been restated in catena of decisions. In State of U.P. vs. Ashok Kumar Srivastava, MANU/SC/0161/1992 : (1992) 2 SCC 86 , it has been observed in para 9 that: 9. A false plea can at best be considered as an additional circumstances, if other circumstances point unfailingly to the guilt of the Accused. 13. The said principles have been restated in catena of decisions. In State of U.P. vs. Ashok Kumar Srivastava, MANU/SC/0161/1992 : (1992) 2 SCC 86 , it has been observed in para 9 that: 9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the Accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the Accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the Accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. 14. Again in Majendran Langeswaran vs. State (NCT of Delhi) and Another, MANU/SC/0631/2013 : (2013) 7 SCC 192 , this Court having found the material relied upon by the prosecution inconsistent and the infirmities in the case of the prosecution, considered number of earlier decisions, and held that the conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to the circumstantial evidence that all circumstances must lead to the conclusion that the Accused is the only one who has committed the crime and none else. 15. Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the Accused only and none else. Reliance placed by learned advocate Mr. 15. Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the Accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the Accused. In Shambu Nath Mehra vs. State of Ajmer, MANU/SC/0023/1956 : AIR (1956) SC 404, this Court had aptly explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in Para-9: 9. This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the Accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an Accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle vs. Emperor, MANU/PR/0117/1936 : AIR 1936 PC 169 and Seneviratne vs. R. (1936) 3 All ER 36. 16. In the case on hand, the prosecution having failed to prove the basic facts as alleged against the Accused, the burden could not be shifted on the Accused by pressing into service the provisions contained in Section 106 of the Evidence Act. 16. In the case on hand, the prosecution having failed to prove the basic facts as alleged against the Accused, the burden could not be shifted on the Accused by pressing into service the provisions contained in Section 106 of the Evidence Act. There being no cogent evidence adduced by the prosecution to prove the entire chain of circumstances which may compel the court to arrive at the conclusion that the Accused only had committed the alleged crime, the court has no hesitation in holding that the Trial Court and the High Court had committed gross error of law in convicting the Accused for the alleged crime, merely on the basis of the suspicion, conjectures and surmises.” (Emphasis supplied) 16. After a threadbare discussion of the evidence of the prosecution witnesses and the precedents governing this situation, referred to supra, we are of the firm opinion that the conviction of the accused appellants as recorded by the trial court vide impugned Judgment dated 22.09.2017 is not based on an apropos discussion of evidence available on record and hence, the same cannot be sustained. 17. Resultantly, the impugned Judgment dated 22.09.2017 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Bikaner in Sessions Case No. 46/2013, is hereby quashed and set aside. The appellants are acquitted of the charges. The accused appellant Dhannaram is in custody. He shall be released from prison forthwith if not wanted in any other case. The accused appellants Kanhaiyalal and Mohta Devi are on bail. They need not surrender and their bail bonds are discharged. 18. The appeals is allowed accordingly. 19. However, keeping in view the provisions of Section 437-A Cr.P.C. each of the appellants is directed to furnish a personal bond in the sum of Rs. 40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court. 20. Record be returned to the trial court forthwith.